The Interdisciplinary Examining Board (IEB) was created in 1995 by Senate Bill 250 for the purpose of determining if claimants meet the 50% whole body impairment standard and further determining if claimants are permanently totally disabled or if vocational rehabilitation is possible in permanent total disability cases. The IEB is comprised of three physician members with the specialties and expertise qualifying them to evaluate medical impairment and two other members who are certified rehabilitation counselors.
Issue Area 1: The condition of IEB meeting records is insufficient to maintain optimal management control.
IEB meeting records have taken several forms over the existence of the Board. These records vary in quality, format and completeness and, make it difficult to determine meeting length, time spent by each member at meetings, extraordinary activities such as member refusals from voting and IEB referrals to members' private practices. Records for some meetings are missing entirely, such as those for a meeting occurring on February 2, 1995 for which the five members were collectively paid $4,000. This "meeting" occurred eight days before the Legislature's passage of S.B. 250 which created the Board, seven months before the members were officially appointed to the Board.
Through errors in data entry, IEB members were accidentally paid multiple times for the same IEB meeting, as the per diem amounts were misunderstood to be per claimant rates. The overpayments began in 1996 and continued into 1997. The amounts overpaid were not fully recovered until March and April of 1998 when the total amounts overpaid were reconciled with records produced by the Board members. At that time, Board members who still had outstanding overpaid balances wrote checks to reimburse the Workers' Compensation Division for the amounts still owed. The largest reimbursement check totaled $31,500 for one Member. Recovery of monies overpaid to Board members was complicated and compromised by the condition of Board records.
The Bureau has recently taken measures to improve the state of IEB records. In early December 1998, Workers' Compensation Division staff created a new spreadsheet to capture more complete meeting data. The Legislative Auditor recommends that the Bureau continue to improve these records by ensuring that information such as meeting times, members present, referrals made, refusals from voting, and amounts billed for exams is readily accessible along with the other data which is being maintained. It is also recommended that the Bureau recover per diem payments made for the February 2, 1995 IEB meeting, since such meeting of the IEB could not have legally occurred. In addition, the Legislative Auditor recommends that the Bureau review amounts billed by IEB members for services rendered and require proper documentation for reimbursement of expenses and compensation for meeting attendance in the future.
Issue Area 2: The IEB is statutorily required to make self-referrals.
West Virginia Code '23-4-6 requires IEB members to personally conduct examinations when additional information is needed to make disability recommendations. Thus, the incompatible duties of referring claimants and profiting from the work are vested with the Board. While self-referral is required under the statute, allowing the IEB to make referrals to members' practices is analogous to the Supreme Court asking one of its Justices to review aspects of the defense's case in his/her private law practice. Furthermore, West Virginia Code '30-3-14 (c) provides that the West Virginia Board of Medicine may deny an application for license or other authorization to practice medicine and surgery and podiatry or discipline a duly licensed physician or podiatrist for receiving valuable consideration in exchange for a referral.
Although the frequency of referrals, as provided by the Workers' Compensation Division, are not necessarily indicative of abuse, the provision for self-referring provides for a susceptible control environment. The Legislature should consider requiring the IEB to make such referrals to other providers.
Issue Area 3: IEB member physicians are also allowed to serve as IME's.
The manner in which physician members are permitted to serve as Independent Medical Examiners (IME's) and conduct workers' compensation disability examinations for claimants and employers while serving on the IEB makes abuse of the claims process possible. IME's are physicians who complete the initial disability examination(s) of each claimant after he/she files a claim with the Workers' Compensation Division. The IEB reviews the IME's records, and records of claimant/employer physicians and makes an independent assessment of the claimant's disability. Thus the IEB tends to serve in an oversight capacity for the IME's, ensuring that examinations are conducted properly according to the AMA's Guides and making the final independent review of the claimant's disability. If IME exams are not properly completed according to the Guides, IEB members are paid to complete another exam. Functioning as a quality control mechanism as claimants reach the IEB and, at the same time, serving as IME's permits members to have incompatible duties.
Another compelling argument in favor of disallowing IEB members to serve as IME's and conduct claimant/employer disability examinations is that members which have conducted these previous exams should recuse themselves from the reevaluation of such claimants as IEB members. Minutes of early Board meetings indicate that members routinely recuse themselves from IEB duties when they have previously conducted claimant-ordered or employer-ordered evaluations of the claimant under review. Thus, the State is paying a $1,000 per diem for each physician Member's participation on the IEB, but may not have a quorum of members to vote on an odd claim because of such recusal. Ultimately, the disposition of a claimant's case may be delayed for this reason. However, members do not recuse themselves from reviewing Bureau-ordered IME exams. Thus, parties to such claim do not receive the same standard of due process through an independent IEB review, which is provided in other claims. The Legislature should consider amending the West Virginia Code to prohibit physician members of the IEB from also serving as IME's and providing claimant-ordered and employer-ordered disability exams.
Issue Area 4: The per diem compensation paid to IEB members is excessive.
IEB members are paid a fixed amount for each meeting they attend. The rate of compensation is $1,000 for physician members and $500 for rehabilitation specialists. Travel expenses are also reimbursed for some members. American Medical Association data for 1995 indicates that the highest paid group of physicians are male physicians with 10-19 years of experience. They averaged $83.60 per hour. This compares to an average of $429 per hour paid to IEB member physicians, for a typical 2= hour meeting.
Given an average of 2.77 hours of attendance per meeting, the $500 per diem paid to rehabilitation specialists equates to an hourly rate of $180.50. Two IEB members are certified rehabilitation counselors. As of July 1, 1998, the West Virginia Division of Rehabilitation Services employed 34 full-time "Certified Rehabilitation Counselors." Pay to these employees ranged from $30.98 to $18.18 per hour, including benefits and annual increment amounts. Average pay to these employees was $22.00 per hour and median pay (pay to the middle level employee) was $21.30 per hour. The nature of these IEB members' roles more closely align with another position at the West Virginia Division of Rehabilitation Services, that of "Senior Disability Evaluation Specialists." These employees specialize in determining the vocation potential of persons with disabilities. Division of Rehabilitation Services pay to these employees ranged from $25.38 per hour to $15.03 per hour, including benefits and annual increment amounts. Average pay to these employees was $20.99 and median pay (pay to the middle level employee) was $21.75. Thus, comparing the IEB hourly rate of $180.50 per hour with the highest paid Certified Rehabilitation Counselor at the Division of Rehabilitation Services earning $30.98 per hour, IEB rehabilitation members earn nearly six times their rate of pay. These IEB members earn more than eight times the average DRS Certified Rehabilitation Counselor's compensation. The Bureau of Employment Programs should reevaluate the rates at which IEB members, both physicians and rehabilitation specialists, are compensated in order to make their pay comparable to that of others in their professions.